SENATE SUBSTITUTE AMENDMENT 1,
TO 2005 SENATE BILL 78
April 1, 2005 - Offered by Committee on Health, Children, Families, Aging and
Long Term Care
.
SB78-SSA1,1,12 1An Act to renumber 961.22 (3) (a), 961.437, 961.49, 961.61 and 961.62; to
2renumber and amend
961.46; to amend 101.10 (title), 101.10 (3) (e), 895.555
3(title), 895.555 (1), 938.34 (14s) (am) (intro.), 939.62 (2m) (a) 2m. d., 939.62 (2m)
4(d), 961.23 (1), 961.23 (2), 961.23 (3), 961.23 (4), 961.23 (5), 961.41 (1r), 961.49
5(title) and 973.01 (2) (c) 2. a.; and to create 101.10 (3) (f), 111.335 (1) (cs) 5.,
6125.12 (2) (ag) 5m., 125.12 (2) (ag) 6m., 125.12 (4) (ag) 7m., 125.12 (4) (ag) 8m.,
7939.32 (1) (g), 939.62 (2m) (a) 2m. am., 961.01 (14f), 961.01 (17m), 961.01 (20c),
8961.01 (20d), 961.01 (20e), 961.22 (3) (am), 961.23 (6), 961.23 (8), 961.235,
9961.452, 961.46 (2), 961.49 (2m), 961.63, 961.65, 973.017 (8) (a) 3. and 973.017
10(8) (c) of the statutes; relating to: pseudoephedrine and other materials used
11to produce methamphetamine, the distribution of methamphetamine to
12minors, and providing penalties.
The people of the state of Wisconsin, represented in senate and assembly, do
enact as follows:
SB78-SSA1, s. 1
1Section 1. 101.10 (title) of the statutes is amended to read:
SB78-SSA1,2,3 2101.10 (title) Storage and handling of anhydrous ammonia; theft of
3liquid nitrogen, anhydrous ammonia, and anhydrous ammonia equipment
.
SB78-SSA1, s. 2 4Section 2. 101.10 (3) (e) of the statutes is amended to read:
SB78-SSA1,2,95 101.10 (3) (e) Intentionally take, carry away, use, conceal, or retain possession
6of liquid nitrogen, anhydrous ammonia belonging to another, or anhydrous ammonia
7equipment belonging to another, without the other's consent and with intent to
8deprive the owner permanently of possession of the liquid nitrogen, anhydrous
9ammonia, or anhydrous ammonia equipment.
SB78-SSA1, s. 3 10Section 3. 101.10 (3) (f) of the statutes is created to read:
SB78-SSA1,2,1411 101.10 (3) (f) Intentionally release or allow the escape of anhydrous ammonia
12belonging to another into the atmosphere. This paragraph does not apply if the
13owner has authorized the actor to exercise control over the anhydrous ammonia or
14has consented to its release.
SB78-SSA1, s. 4 15Section 4. 111.335 (1) (cs) 5. of the statutes is created to read:
SB78-SSA1,2,1816 111.335 (1) (cs) 5. Possessing any of the materials listed in s. 961.65 with intent
17to manufacture methamphetamine under that subsection or under a federal law or
18a law of another state that is substantially similar to s. 961.65.
SB78-SSA1, s. 5 19Section 5. 125.12 (2) (ag) 5m. of the statutes is created to read:
SB78-SSA1,2,2320 125.12 (2) (ag) 5m. The person has been convicted of possessing any of the
21materials listed in s. 961.65 with intent to manufacture methamphetamine under
22that subsection or under a federal law or a law of another state that is substantially
23similar to s. 961.65.
SB78-SSA1, s. 6 24Section 6. 125.12 (2) (ag) 6m. of the statutes is created to read:
SB78-SSA1,3,3
1125.12 (2) (ag) 6m. The person knowingly allows another person, who is on the
2premises for which the license under this chapter is issued, to possess any of the
3materials listed in s. 961.65 with the intent to manufacture methamphetamine.
SB78-SSA1, s. 7 4Section 7. 125.12 (4) (ag) 7m. of the statutes is created to read:
SB78-SSA1,3,85 125.12 (4) (ag) 7m. That the licensee has been convicted of possessing any of
6the materials listed in s. 961.65 with intent to manufacture methamphetamine
7under that subsection or under a federal law or a law of another state that is
8substantially similar to s. 961.65.
SB78-SSA1, s. 8 9Section 8. 125.12 (4) (ag) 8m. of the statutes is created to read:
SB78-SSA1,3,1210 125.12 (4) (ag) 8m. That the licensee knowingly allows another person, who is
11on the premises for which the license under this chapter is issued, to possess any of
12the materials listed in s. 961.65 with the intent to manufacture methamphetamine.
SB78-SSA1, s. 9 13Section 9. 895.555 (title) of the statutes is amended to read:
SB78-SSA1,3,15 14895.555 (title) Liability exemption; anhydrous ammonia and liquid
15nitrogen
.
SB78-SSA1, s. 10 16Section 10. 895.555 (1) of the statutes is amended to read:
SB78-SSA1,3,2317 895.555 (1) Liability exemption. Except as provided under sub. (2), any person
18who owns, maintains, or installs anhydrous ammonia equipment, as defined in s.
19101.10 (1) (b), or who uses anhydrous ammonia or liquid nitrogen for any legal
20purpose is immune from any civil liability for acts or omissions relating to the
21anhydrous ammonia equipment or to anhydrous ammonia or liquid nitrogen that
22cause damage or injury to an individual, if that damage or injury occurs during the
23individual's violation of s. 101.10 (3) (c), (d), or (e), or (f).
SB78-SSA1, s. 11 24Section 11. 938.34 (14s) (am) (intro.) of the statutes is amended to read:
SB78-SSA1,4,3
1938.34 (14s) (am) (intro.) In addition to any other dispositions imposed under
2this section, if the juvenile is found to have violated s. 961.41 (1) or (1m) or 961.65,
3the court shall order one of the following penalties:
SB78-SSA1, s. 12 4Section 12. 939.32 (1) (g) of the statutes is created to read:
SB78-SSA1,4,65 939.32 (1) (g) Whoever attempts to commit a crime under s. 101.10 (3) (e) is
6subject to the penalty for the completed act, as provided in s. 101.10 (4) (b).
SB78-SSA1, s. 13 7Section 13. 939.62 (2m) (a) 2m. am. of the statutes is created to read:
SB78-SSA1,4,88 939.62 (2m) (a) 2m. am. A crime under s. 961.65.
SB78-SSA1, s. 14 9Section 14. 939.62 (2m) (a) 2m. d. of the statutes is amended to read:
SB78-SSA1,4,1210 939.62 (2m) (a) 2m. d. A crime at any time under federal law or the law of any
11other state or, prior to April 28, 1994, under the law of this state that is comparable
12to a crime specified in subd. 2m. a., am., b., or c.
SB78-SSA1, s. 15 13Section 15. 939.62 (2m) (d) of the statutes is amended to read:
SB78-SSA1,4,1914 939.62 (2m) (d) If a prior conviction is being considered as being covered under
15par. (a) 1m. b., or 2m. d. as comparable to a felony specified under par. (a) 1m. a. or
162m. a., am., b., or c., the conviction may be counted as a prior conviction under par.
17(b) only if the court determines, beyond a reasonable doubt, that the violation
18relating to that conviction would constitute a felony specified under par. (a) 1m. a.
19or 2m. a., am., b., or c. if committed by an adult in this state.
SB78-SSA1, s. 16 20Section 16. 961.01 (14f) of the statutes is created to read:
SB78-SSA1,4,2421 961.01 (14f) "Methamphetamine precursor" means any material, compound,
22mixture, or preparation that contains any quantity of ephedrine or pseudoephedrine
23or any of their salts, isomers, and salts of isomers but does not include a product to
24which sub. (20c) (a) or (b) applies.
SB78-SSA1, s. 17 25Section 17. 961.01 (17m) of the statutes is created to read:
SB78-SSA1,5,2
1961.01 (17m) "Pharmacy assistant" means a person working under the
2supervision of a pharmacist.
SB78-SSA1, s. 18 3Section 18. 961.01 (20c) of the statutes is created to read:
SB78-SSA1,5,64 961.01 (20c) "Pseudoephedrine" does not include a product containing the
5chemical pseudoephedrine or any of its salts, isomers, or salts of isomers if any of the
6following applies:
SB78-SSA1,5,97 (a) The product is a pseudoephedrine liquid or gelcap. This paragraph does not
8apply if the package containing the product contains more than 360 milligrams of the
9chemical pseudoephedrine or any of its salts, isomers, or salts of isomers.
SB78-SSA1,5,1110 (b) The controlled substances board has determined, by rule, that the product
11cannot be readily used in the manufacture of methamphetamine.
SB78-SSA1, s. 19 12Section 19. 961.01 (20d) of the statutes is created to read:
SB78-SSA1,5,1513 961.01 (20d) "Pseudoephedrine gelcap" means a soft gelatin capsule that is
14intended to be sold at retail and that contains 360 milligrams or less of the chemical
15pseudoephedrine or any of its salts, isomers, or salts of isomers.
SB78-SSA1, s. 20 16Section 20. 961.01 (20e) of the statutes is created to read:
SB78-SSA1,5,2017 961.01 (20e) "Pseudoephedrine liquid" means a product that is intended to be
18sold at retail, that is a liquid at room temperature, and that contains 360 milligrams
19or less of the chemical pseudoephedrine or any of its salts, isomers, or salts of
20isomers.
SB78-SSA1, s. 21 21Section 21. 961.22 (3) (a) of the statutes is renumbered 961.22 (3) (b).
SB78-SSA1, s. 22 22Section 22. 961.22 (3) (am) of the statutes is created to read:
SB78-SSA1,5,2323 961.22 (3) (am) Pseudoephedrine.
SB78-SSA1, s. 23 24Section 23. 961.23 (1) of the statutes is amended to read:
SB78-SSA1,6,2
1961.23 (1) That they They may be dispensed and sold only in good faith as a
2medicine, and not for the purpose of evading this chapter.
SB78-SSA1, s. 24 3Section 24. 961.23 (2) of the statutes is amended to read:
SB78-SSA1,6,64 961.23 (2) That they They may be sold at retail only by a registered pharmacist
5or, if the substance is pseudoephedrine, by a pharmacy assistant when sold in a retail
6establishment.
SB78-SSA1, s. 25 7Section 25. 961.23 (3) of the statutes is amended to read:
SB78-SSA1,6,108 961.23 (3) That, when When sold in a retail establishment, they shall bear the
9name and address of the establishment on the immediate container of said
10preparation.
SB78-SSA1, s. 26 11Section 26. 961.23 (4) of the statutes is amended to read:
SB78-SSA1,6,2012 961.23 (4) That any Any person purchasing such a substance shall, at the time
13of purchase, present to the seller that person's correct name and, address, and, if the
14person is purchasing pseudoephedrine, an identification card containing the
15person's photograph
. The seller shall record the name and address and the name and
16quantity of the product sold. The purchaser and either the seller or, if the substance
17is pseudoephedrine and is being sold by a pharmacy assistant, the pharmacist
18supervising the seller
shall sign the record of this transaction. The giving of a false
19name or false address by the purchaser shall be prima facie evidence of a violation
20of s. 961.43 (1) (a).
SB78-SSA1, s. 27 21Section 27. 961.23 (5) of the statutes is amended to read:
SB78-SSA1,6,2522 961.23 (5) That no No person may purchase more than 8 ounces of a product
23containing opium or more than 4 ounces of a product containing any other schedule
24V substance other than pseudoephedrine within a 48-hour period without the
25authorization of a physician, dentist, or veterinarian nor.
SB78-SSA1,7,6
1(7) No person other than a physician, dentist, veterinarian, or pharmacist may
2possess more than 8 ounces of a product containing opium or more than 4 ounces of
3a product containing any other schedule V substance be in the possession of any
4person other than a physician, dentist, veterinarian or pharmacist
other than
5pseudoephedrine
at any time without the authorization of a physician, dentist, or
6veterinarian.
SB78-SSA1, s. 28 7Section 28. 961.23 (6) of the statutes is created to read:
SB78-SSA1,7,118 961.23 (6) No person other than a physician, dentist, veterinarian, or
9pharmacist may purchase more than 6 grams of a product containing
10pseudoephedrine within a 30-day period without the authorization of a physician,
11dentist, or veterinarian.
SB78-SSA1, s. 29 12Section 29. 961.23 (8) of the statutes is created to read:
SB78-SSA1,7,1413 961.23 (8) No person may sell pseudoephedrine to a person under 18 years of
14age, and no person under 18 years of age may purchase pseudoephedrine.
SB78-SSA1, s. 30 15Section 30. 961.235 of the statutes is created to read:
SB78-SSA1,7,20 16961.235 Records relating to pseudoephedrine sales. Records required
17under s. 961.23 (4) with respect to the sale of pseudoephedrine may be kept in either
18a paper or electronic format and shall be maintained by the pharmacy for at least 5
19years. Only a pharmacist or a law enforcement officer may have access to
20information recorded under s. 961.23 (4) with respect to the sale of pseudoephedrine.
SB78-SSA1, s. 31 21Section 31. 961.41 (1r) of the statutes is amended to read:
SB78-SSA1,8,722 961.41 (1r) Determining weight of substance. In determining amounts under
23s. 961.49 (2) (b), 1999 stats., and subs. (1) and (1m), and s. 961.65, an amount includes
24the weight of cocaine, cocaine base, heroin, phencyclidine, lysergic acid
25diethylamide, psilocin, psilocybin, amphetamine, methamphetamine,

1methamphetamine precursors, methcathinone, or tetrahydrocannabinols or any
2controlled substance analog of any of these substances together with any compound,
3mixture, diluent, plant material or other substance mixed or combined with the
4controlled substance or, controlled substance analog, or methamphetamine
5precursors
. In addition, in determining amounts under subs. (1) (h) and (1m) (h), the
6amount of tetrahydrocannabinols means anything included under s. 961.14 (4) (t)
7and includes the weight of any marijuana.
SB78-SSA1, s. 32 8Section 32. 961.437 of the statutes is renumbered 961.67.
SB78-SSA1, s. 33 9Section 33. 961.452 of the statutes is created to read:
SB78-SSA1,8,14 10961.452 Defenses in certain schedule V prosecutions. (1) A person who
11proves all of the following by a preponderance of the evidence has a defense to
12prosecution under s. 961.41 (1) (j) that is based on the person's violation of a condition
13specified in s. 961.23 with respect to the person's distribution or delivery of
14pseudoephedrine:
SB78-SSA1,8,1615 (a) The person did not knowingly or recklessly violate the condition under s.
16961.23.
SB78-SSA1,8,1917 (b) The person reported his or her own violation of the condition under s. 961.23
18to a law enforcement officer in the county or municipality in which the violation
19occurred within 30 days after the violation.
SB78-SSA1,8,23 20(2) A seller who proves all of the following by a preponderance of the evidence
21has a defense to prosecution under s. 961.41 (1) (j) that is based on the person's
22violation of a condition specified in s. 961.23 with respect to the person's distribution
23or delivery of pseudoephedrine:
SB78-SSA1,8,2524 (a) The person did not knowingly or recklessly violate the condition under s.
25961.23.
SB78-SSA1,9,2
1(b) The acts or omissions constituting the violation of the condition under s.
2961.23 were the acts or omissions of one or more of the person's employees.
SB78-SSA1,9,43 (c) The person provided training to each of those employees regarding the
4restrictions imposed under s. 961.23 on the delivery of pseudoephedrine.
SB78-SSA1,9,6 5(3) A person who proves all of the following by a preponderance of the evidence
6has a defense to prosecution under s. 961.41 (1) (j) for a violation of s. 961.23 (6):
SB78-SSA1,9,87 (a) The purchaser presented an identification card that contained a name or
8address other than the person's own.
SB78-SSA1,9,119 (b) The appearance of the purchaser was such that an ordinary and prudent
10person would believe that the purchaser was the person depicted in the photograph
11contained in that identification card.
SB78-SSA1,9,1412 (c) The sale was made in good faith, in reasonable reliance on the identification
13card and appearance of the purchaser, and in the belief that the name and address
14of the purchaser were as listed on the identification card.
SB78-SSA1,9,16 15(4) A person who proves all of the following by a preponderance of the evidence
16has a defense to prosecution under s. 961.41 (1) (j) for a violation of s. 961.23 (8):
SB78-SSA1,9,1817 (a) The purchaser presented an identification card that indicated that he or she
18was 18 years of age or older.
SB78-SSA1,9,2019 (b) The appearance of the purchaser was such that an ordinary and prudent
20person would believe that the purchaser was 18 years of age or older.
SB78-SSA1,9,2321 (c) The sale was made in good faith, in reasonable reliance on the identification
22card and appearance of the purchaser, and in the belief that the purchaser was 18
23years of age or older.
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